By ANTHONY DIALA, Director, Centre for Legal Integration in Africa, University of the Western Cape
Following the death of AmaZulu King Goodwill Zwelithini on 12 March 2021 in South Africa, the royal family convened on 24 March 2021 and appointed Queen Mantfombi Dlamini Zulu as regent. Although the king’s third wife, she was his great wife – a royal consort who, by Zulu law, births the king’s successor. The king had five other wives.
Before her regency was gazetted by the premier of the KwaZulu-Natal province, as required by South African statutory law, the queen died on 29 April 2021. On 14 May 2021, the royal family unanimously nominated her firstborn son, Prince Misuzulu, as the successor to the Zulu throne. Later that month, various members of the royal family, notably Queen Sibongile Dlamini, the late king’s first wife, challenged his will, and the validity of Prince Misuzulu’s nomination as his successor.
On 2 March 2022, the High Court in Pietermaritzburg found that Prince Misuzulu was appropriately identified and nominated as the undisputed successor to the Zulu throne. By dismissing objections to his nomination, the court paved the way for his coronation as the king – if the matter is not successfully appealed.
There are 10,7 million isiZulu speakers in South Africa, about 22% of the population, according to the 2012 census.
Obviously, this dispute has political undertones. I will, however, not discuss them. Rather, I focus on the significance of two questions concerning the royal family’s resort to the courts and the subsequent ruling.
Why was this dispute adjudicated with “the white man’s law”, thereby questioning the authority of the AmaZulu Royal Council, whose dispute resolution mechanisms ought to be respected by all Zulus? What is the significance of the ruling for matrimonial property rights under customary law?
Customary law, or indigenous law, is recognised by the constitution and put on an equal footing with common law. This implies that its development ought to be undertaken by its adherents in a bottom-up manner, rather than by the courts.
An uncomfortable truth
Firstly, the royal family’s resort to the courts confirms an uncomfortable truth: African customs and traditions are subject to state courts. Importantly, these courts – both procedurally and content-wise – are replicas of the colonial justice system bequeathed by the Dutch and the British.
Lest we forget, although European colonialists allowed Africans to continue observing their indigenous customs, they smartly subjected the validity of these customs to European standards and procedures.
Moreover, colonial schools, churches, and work systems were configured to reflect European culture. So, in essence, African elites, especially judges, are philosophical clones of Europeans because they carried on from where their colonial masters left off.
Secondly, the High Court ruling recognised that the late king’s first wife married him in community of property. A marriage in community of property is one of profit and loss. The property is divided equally in the event of marriage dissolution, unless the parties opted otherwise through a pre-marital agreement.
Specifically, paragraph 28 of the ruling relied on the 2021 Constitutional Court judgment in Sithole vs Sithole. This case declared that all marriages of black people under section 22(6) of the colonial era Black Administration Act of 1927 are in community of property. This is irrespective of whether they occurred before the commencement of the Matrimonial Property Act of 1984, the Marriage Act of 1961, the Civil Union Act of 2006, and the Recognition of Customary Marriages Act of 1998.
But parliament is yet to reflect the Sithole judgment in legislation. This raises an interesting question: when the Constitutional Court declares a law retrospectively invalid, does it constitute enforceable law even before it reflects in legislation? The ruling says yes. Traditional communities may say differently.
The Sithole declaration is radical because indigenous African laws lacked binary notions of equality in marital property division. Due to the agrarian nature of precolonial societies, income was generated by the family as a group through farming, hunting, and artwork. Individual rights were muted, while group welfare was paramount.
Thus, women’s property rights were confined to items of adornment. In rare cases of divorce, they were reabsorbed into the welfare system of their parents. Thus, their matrimonial property rights were unproblematic. This is no longer the case with urbanisation, independent income, and modern notions of equality.
Loss of identity
Finally, the Zulu kingship ruling shows how the courts mould indigenous conduct into the image of state values. A cursory glance at the ruling gives the impression that tradition guides the resolution of succession disputes. This is because the High Court acknowledged that
the Royal Family is the fabric of traditional leadership (and) is responsible for the identification of traditional leaders.
Accordingly, the Queen Regent’s nomination of Prince Misuzulu was not binding on the royal family. But the court added that the family’s nomination was still subject to approval by the premier or the president. Thus, although the state recognises that a monarch is identified and nominated in terms of customary law, it regulates the process tightly, specifically through section 8(1) and (3) of the Traditional Leadership and Governance Framework Act of 2003 and section 17(3) of the KwaZulu-Natal Traditional Leadership and Governance Act of 2005.
Informed by South Africa’s constitution, these laws and others like them infuse European ideas of equality, dignity, and non-discrimination into indigenous African laws. If state laws continue to regulate indigenous conduct and disputes in this manner, indigenous laws will eventually be eradicated.
My research on the interaction of legal orders in Africa uses the theory of adaptive legal pluralism to explain the status and destination of indigenous laws. This theory regards the interaction of legal orders in sub-Saharan Africa as coercively imitative.
This is because state laws compel indigenous laws to become like them. The judges and the legislators who compel these adaptations in indigenous laws rarely address the dissonance between the communal nature of indigenous norms and the individualistic nature of state laws. Why is this neglect significant?
When judges, legislators, and policymakers like the South African Law Reform Commission neglect the foundational dynamics of indigenous customs, they worsen conflict between indigenous laws and state laws. Judgments such as the Zulu kingship dispute, therefore, show how colonised people lose their cultural identity.
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